Claims Assessors must provide reasons for accepting or declining exemption applications

Is a Claims Assessor obliged to give reasons for accepting or declining an application for discretionary exemption? The Supreme Court provides the answer in Insurance Australia Ltd t/as NRMA Insurance v Wannous.

 

Author: Michael Li
Judgment date: 9 June 2020
Citation: Insurance Australia Ltd t/as NRMA Insurance v Wannous [2020] NSWSC 694
Jurisdiction: Supreme Court of New South Wales¹

Principles

• A Claims Assessor is required to give reasons for accepting or declining applications for discretionary exemption made pursuant to s92(1)(b) of the Motor Accidents Compensation Act 1999.

Background

Mr Wannous sustained injuries in a motor accident on 7 March 2016. NRMA applied for exemption from assessment by CARS on the grounds that Mr Wannous had made false and misleading statements about his injuries, loss and damage, and that he had failed to disclose a relevant pre-accident medical history. The application was opposed, and the Claims Assessor agreed that the claim ought not be exempt, stating:

"I ha(ve) read the material and I will be issuing a preliminary conference report indicating that I decline to recommend that the matter be exempt from assessment. I will not be providing reasons…."

By summons filed with the Supreme Court, NRMA challenged this decision on the basis that the Claims Assessor had an implied obligation to give reasons for his decision but failed to do so.

Decision

Clause 14.13 of the Claims Assessment Guidelines provides that a Claims Assessor must provide reasons if an application for discretionary exemption is granted. However, there is nothing in the Motor Accident Compensation Act 1999 (MACA) or in the Guidelines, that expressly requires a Claims Assessor to give reasons for declining an application.

The Supreme Court noted the primary function of claims assessors is that conferred by s94(1) of MACA, namely the making of an assessment on the issue of liability and damages. It is well established that such a function is "judicial" in nature and, as such requires reasons to be given to support decisions made (Campbelltown City Council v Vegan & Ors (2006) 67 NSWLR 372; [2006] NSWCA 284.

Justice Beech-Jones reasoned, at [33]:

"….. given that the decision under s 92(1)(b) is made by a claims assessor who undertakes a function that is “judicial in nature” under s 94(1), that the decision requires a preliminary exercise of that function and the making an evaluation of the suitability of the claim for determination under the MACA, it follows that a determination by a claims assessor under s 92(1)(b) to either exempt or decline to exempt a claim from assessment also involves the exercise of a function that is “judicial in nature” and is subject to an implied duty to give reasons."

The Court ordered that the Claims Assessor's decision be set aside.

Why this case is important

This case provides confirmation that many decisions required to be made by Claims Assessors – including the granting or refusal of applications for exemption – are in the nature of the exercise of a judicial function. As such, they must be supported by reasons.

The rule also applies to DRS Claims Assessors who make decisions pursuant to the Motor Accident Injuries Act 2017.

If decisions are made by Claims Assessors that either are not supported by reasons, or lack adequate reasons, they may be open to challenge.

¹ Beech-Jones J